The Bolinao incident: a legal perspective

AUTHOR

Romel R. Bagares

DATE

October 02, 2017

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The Philippines has the sole, exclusive jurisdiction over the Philippine Navy vessel and personnel allegedly involved in the Bolinao shooting incident last Sept. 22 involving a Vietnamese fishing vessel, given that the allegedly offending vessel in question is a ship of the Philippine government utilized for non-commercial service. As such, it is covered by (a) the Flag State jurisdiction; and (b) complete immunity from the jurisdiction of other states.

However, concerns may be raised about the use of force by the Philippine Navy ship, which appears to have been excessive and unreasonable, similar to what happened in the Balintang incident in 2013, when a Philippine Coastguard patrol vessel figured in a shooting incident off Batanes, killing a member of the Taiwanese fishing crew.

There is no dispute that the incident happened in a maritime zone that is not subject to full criminal jurisdiction by either Vietnam or the Philippines, it having happened in an area falling within Exclusive Economic Zones (EEZ) of the latter, at around 35 nautical miles off Pangasinan.

As provided for by the UN Convention on the Law of the Sea, a coastal state’s jurisdiction diminishes the farther it gets from that belt of waters that is its territorial sea. Full criminal jurisdiction obtains only in the territorial sea under the territorial principle.

Jurisdiction and duties in the EEZ

A variety of jurisdictions – all involving less than full sovereignty – applies in the contiguous zone and in the EEZ. In the case of the EEZ, under Art. 56 of the UNCLOS, a coastal state’s jurisdiction generally pertains for the most part to the following:

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

a. sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

b. jurisdiction as provided for in the relevant provisions of this Convention with regard to:

i. the establishment and use of artificial islands, installations and structures;

ii. marine scientific research;

iii. the protection and preservation of the marine environment;

c. other rights and duties provided for in this Convention.

These pertain to sovereign rights over living and non-living marine resources. Sovereign rights means the exclusive right of the Coastal state, in this case, the Philippines, to exploit such resources, to the exclusion of other States. And none of these involve the jurisdiction of a coastal state to prosecute an ordinary crime of murder or homicide occurring in the EEZ and allegedly committed by a properly marked government vessel of which the coastal state is not the Flag State itself.

There are situations when universal jurisdiction as applied to the high seas operate as well in the EEZ, as provided for in Art. 58 (2) of the UNCLOS relation to Part VII, Arts. 88-115 of the UNCLOS, but these pertain to such crimes as piracy, slavery, and unauthorized broadcasting in the high seas. None of these applies to the current controversy.

Immunity of PN crew

Besides that, there is the fact that the Philippine vessel in question is a Philippine Navy ship. Both ship and its crew, who are all agents of the Philippine state, are covered by state immunity and may only be proceeded against in a criminal procedure by a Philippine court, unless the Philippines has expressly waived such immunity, in favor of a Vietnamese Court.

In the 2012 The “ARA Libertad” Case (Argentina v. Ghana), the International Tribunal on the Law of the Sea (ITLOS) held that, “in accordance with general international law, a warship enjoys immunity” and that “any act which prevents by force a warship from discharging its mission and duties is a source of conflict that may endanger friendly relations among States.”

This is pursuant to Art. 32 of the UNCLOS, which states that:

Immunities of warships and other government ships operated for non-commercial purposes.

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes.

The Philippine Navy ship in question being a government vessel and its crew being agents of the Philippine state, its acts are considered acta jure imperii, or sovereign acts of state, and in pursuance of the Philippine state’s sovereignty.

This principle of state immunity as applied to the Philippine maritime patrol vessel is a matter of customary international law binding upon all nations.

The International Court of Justice (ICJ), in a very recent case filed by Germany against Italy, ruled that it applies even in a situation where the armed forces of one state injured the nationals of another state right within the latter’s territory during an armed conflict:

The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction, which flows from it.

Hence in this case, the ICJ stressed that the law on immunity “regulates the exercise of jurisdiction in respect of particular conduct and is thus entirely distinct the substantive law which determines whether that conduct is lawful or unlawful.”

As the ICJ explains further the implications of acts of a sovereign nature – acta jure imperii – on the issue of jurisdiction:

The Court notes that Italy, in response to a question posed by a member of the Court, recognized that those acts had to be characterized as acta jure imperii, notwithstanding that they were unlawful. The Court considers that the terms “jure imperii” and “jure gestionis” do not imply that the acts in question are lawful but refer rather to whether the acts in question fall to be assessed by reference to the law governing the exercise of sovereign power (jus imperii) or the law concerning non-sovereign activities of a State, especially private and commercial activities (jus gestionis). To the extent that this distinction is significant for determining whether or not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a particular act, it has to be applied before that jurisdiction can be exercised, whereas the legality or illegality of the act is something which can be determined only in the exercise of that jurisdiction. Although the present case is unusual in that the illegality of the acts at issue has been admitted by Germany at all stages of the proceedings, the Court considers that this fact does not alter the characterization of those acts as acta jure imperii.

Thus in this case, the ICJ ruled that Germany may not be proceeded against by Italian Courts for acts committed by the latter’s troops in World War II without its consent, such acts being in the nature of acta jure imperii.

PH jurisdiction

Who therefore has jurisdiction to prosecute the crew of a ship protected by state immunity in a shooting incident that allegedly occurred in the Philippines’ EEZ?

The Philippines has the sole and exclusive jurisdiction to do so under established international law, it being the Flag State of the Philippine Navy ship involved, which is here considered an extension of Philippine territory, unless it consents to Vietnam prosecuting the case in its own courts, following current jurisprudence.

A Flag State is a state that grants vessels using international waters, regardless of type and purpose, the right to fly its flag and, in so doing, gives the ships its nationality. Art. 91 (1) of the UNCLOS provides that there must exist a genuine link between the State and the ship; further, Art. 91(2) requires a Flag State to issue ships granted the right to fly its flag documents to that effect.

Under the UNCLOS, a Flag state is responsible for damage caused by “public ships” – warships and government ships for non-commercial purposes – flying its flag.

The Flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

The Philippines being both the Flag State and owner of the Philippine Navy vessel (not to mention that the vessel’s crew are also its agents), it has sole and exclusive jurisdiction to prosecute the patrol vessel’s crew allegedly involved in the shooting incident under its Penal Code.

The available facts however, appear to show that the Philippine Navy ship’s use of force excessively and unreasonably, similar to what happened in the Balintang incident on May 9, 2013, when a Coastguard patrol vessel deputized by the Bureau of Fisheries and Aquatic Resources (BFAR) figured in a shooting incident off Batanes, killing a member of the Taiwanese fishing crew. In this latter incident, the shooting happened in overlapping EEZ claims of both countries.

M/V Saiga case

A landmark jurisprudence relevant to the Bolinao incident is the 1999 case of M/V "Saiga" heard by the International Tribunal on the Law of the Sea. This case illustrates the extent of legal entitlements of a coastal state in cases of violations of its EEZ.

In this case Guinea arrested and detained the oil tanker "Saiga," which was at the time flying the flag of Saint Vincent and the Grenadines but manned by an Ukrainian crew. At the time of the arrest, the ship was selling gas oil to fishing boats off the coast of West Africa, in an area determined to be south of the southernmost tip of the Guinean exclusive EEZ. It was attacked and boarded by a Guinean patrol boat, whose personnel thereafter disabled the ship's engine with gunfire, injuring two crew members, assaulted other ship crew, discharged the cargo, and arrested the ship and crew.

The ITLOS ruled that the use of force by Guinea against an unarmed, fully loaded tanker was beyond the reasonable and found that that Guinea had failed to issue warnings to the Saiga, and had endangered ship crew before and after boarding it.

It thus held that the conduct of Guinean maritime forces had violated the rights of Saint Vincent and the Grenadines under international law. In the end, it ruled that Saint Vincent and the Grenadines was entitled to reparations for damages suffered directly, as well as for other damages and losses by the ship and crew in the amount of US$2,123,357.

Notice that in this case, the ITLOS found that the incident happened within the EEZ of Guinea. Its maritime patrols were enforcing fisheries laws but were found to have done so utilizing excessive force. For this reason the Tribunal awarded damages to Saint Vincent and Grenadines in the form of reparations.

No more than a claim of damages may be made by Vietnam against the Philippines for the loss of the life of its nationals in this incident.

However, under Article 292 of the UNCLOS, the Philippines has an obligation to free a ship and its crew from unreasonable and prolonged detention. It also protects the interests of the Philippines by providing for release only upon the posting of a reasonable bond or other financial security determined by a court or tribunal referred to in article 292, without prejudice to the merits of the case in the domestic forum against the vessel, its owner or its crew. However, these are remedies that must be sought before the ITLOS.

(The author, lawyer Romel Bagares, is executive director of Center for International Law.)